Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-24

G. S. BOwdOn vs.. B. f. Gilbert ct al
from Limestone county; opinion by Stay.
ton, A. J. This action WAS brought in &
Justice court to rsCnver on a note Of
$500, on which 500 had been paid.
Appellee set up counter claims of $500
A Judgment was gotten for SIS, and the
appeal taken TO the District court. Here
appellee set up q larger counter claim
than the Justice court would have iuris-
dction of. The court erred in admitting
this, for although any new mat
ter might be pleaded, no new
cause should be set up by
appellee; "nor shall any set-off or coun-
ter claim be set up by the defendant
which was rot pleaded in the court be
low" TR. S eI6 The counter claims
in the Justice court and District court
exceeded the jurisdiction of the Justice !;
If appellees desired relief on these mat
tiers they should have brought suit in q
court having jurisdiction. How tar the
counter claims Influenced the jury is
hard to tell. For this error the judgment
is reversed and the cause remanded.
D. W. and Jane Reece VS. James A.
Renfro ct al. from Johnson county
Opinion by Willie, c. j. This was an &C
ton of trespass to try title to recover of
appellants $50 acres. Appellants oman
and wife lived in Texas until 1867 or
1868, when they moved to Arkansas. In
1870 the land they had lived on was
patented to William Reece, who owned
the certificate Jointly with his brother,
D. W. Reece. In 1871, William Reece,
under verbal instructions decided D. W.
Reece's interest to Abraham Reece, who
paid d. W. part of the consideration, the
balance being paid by Abraham's chill
dren. In 1875, D. W. Reece and wife
came back to Texas and lived in Tarrant
county until 1877, when they moved to
different place from the one in contro-
versy in Johnson county. In the fall of
1877 they rented this land from William
ReeCe and staid on it until they were put
off by the officer executing the writ of
sequestratiOn. In 1882 William Reece
sold the land to ReDfro. Appellants now
claim the land as a homestead. There is
proof hat Mrs ReeCe left her homestead
unwillingly and often expressed
the opinion while in Arkan-
sGs to return and reclaim the land.
The court below quieted the title of
RenfrO ct al, and appellants make this ap-
peal. 1t is a fact that the homestead
right may be lost by abandonment, and
to DO this it is not necessary to acquire
another homestead. Whera husband and
wife have moved TO smother state, aban-
donment 5 conclusively presumed. The
only difference in the many cases decided
on this questi and this are the statements
of the wife of her intention to return, and
even these were not made known to
Renfr0. 1t is unreasonable to think that
the mere declarations Of the wife coupled
with 3 long absence should outweigh the
contrary evidence furnished by that ab-
sence. Here they were away seven years
and when they returned lived On the land
"a tenants; it was too late to repudlate
their tenancy if they wanted to claim
their homestead, and the law allowed
them to change their minds. They must
have done so as soon IS they came. back
We do not consider that the deed by
William Reece was improperly executed.
There is no error and the case is affirmed,